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VAT / Sales Tax - Case Laws
Showing 461 to 480 of 545 Records
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2023 (2) TMI 589
Denial of the concessional rate of duty in respect of certain inter-state sales - benefit of the C-Forms denied, by cancelling of the same retrospectively - HELD THAT:- In Jain Manufacturing (India) Pvt. Ltd. v. The Commissioner Value Added Tax & Anr. [[2016 (6) TMI 304 - DELHI HIGH COURT]] this Court had held that C-forms cannot be cancelled retrospectively.
The decision in the case of Jain Manufacturing (India) Pvt. Ltd. v. The Commissioner Value Added Tax & Anr. is binding on this Court and therefore, the benefit of the C-Forms in question cannot be denied to the petitioner, by cancelling the same retrospectively.
Petition allowed.
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2023 (2) TMI 547
Abatement of appeals instituted under Section 35 of Goa Value Added Tax Act, 2005, for want of pre-deposit - requirement to predeposit introduced by amendment by the Goa Value Added Tax (Tenth Amendment) Act, 2017 (with retrospective effect) - HELD THAT:- The facts, in this case, are somewhat peculiar because the appeals, as instituted originally, complied with all the conditions prescribed under the principal Act. Even after the Ninth Amendment to the principal Act, the appeals were duly compliant. Only after the Tenth Amendment was a requirement for a deposit of ten per cent of this amount because such a requirement was made applicable even to pending appeals.
Considering the peculiar facts, it is opined that the Petitioner should be granted an opportunity of having its appeals heard on merits, particularly now that the Petitioner has fully complied with the requirement of a pre-deposit of ten per cent of the disputed amount. Therefore, even without going into the disputed issue of natural justice failure, we think this is a fit case where an additional opportunity should be granted to the Petitioner now that the Petitioner has already deposited ten per cent of the disputed amount before the concerned authorities.
Petition disposed off.
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2023 (2) TMI 546
Validity of assessment order - reopening of the assessments under section 27 of the TNVAT Act, 2006 - Assessment Orders are barred by law of limitation or not - Violation of principles of natural justice - HELD THAT:- Admittedly, the petitioner has not sent any reply to the Show Cause Notices sent by the respondents which culminated in passing of the impugned assessment orders. The petitioner categorically contends that they never received any Show Cause Notice from the respondents - As seen from the impugned Assessment Orders, no personal hearing has also been afforded to the petitioner. Since the contentions of the petitioner raised in this writ petition have not been considered in the impugned assessment orders and the petitioner has also not been granted personal hearing in the impugned proceedings, necessarily, the impugned assessment orders have to be quashed on the ground of violation of principles of natural justice and the matter has to be remanded back to the first respondent for fresh consideration on merits.
The impugned Assessment Orders all dated 30.11.2022 are hereby quashed and the matters are remanded back to the first respondent for fresh consideration - Petition allowed by way of remand.
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2023 (2) TMI 545
Penalty u/s 51 (7) (b) of the Punjab Value Added Tax Act, 2005 - evasion of tax - proper and genuine documents were issued by the vendor or not - goods consigned did not match with the goods mentioned in bills - HELD THAT:- The driver of the vehicle had shown all the invoices at ICC, Ghanauli. Though in Form VAT-35 (transit slip), no declaration as to the transaction covered by invoice No.5173 was alleged to have been made by the driver but since the transaction between the vendor and the appellant was clearly reflected from the invoices and since CST had been duly paid, therefore, there could not be stated to be any evasion of tax. Nothing had been brought on record to prove that the goods were intended to be used or sold in the State of Punjab. Rather the material placed on record clearly indicated that 117 pieces of cast crank cases had been brought into the State of Punjab for job work while on transit and the remaining 10 pieces were also for transit purposes. The absence of any written agreement between the appellant and M/s Sahil for receiving goods at Mohali did not give rise to any inference that the goods were intended to be sold at Mohali.
The mere possibility of a local sale would not clothe the officials of the respondents to take such an action when there was no material on record to indicate that an attempt was made by the appellant to deliver the goods at a different place and to sell them in the local market by evading payment of tax.
Appeal allowed.
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2023 (2) TMI 475
Invocation of penal proceedings under Section 67(1) of the KVAT Act - goods in transit - goods transported with a view to evade tax? - Whether the Tribunal erred in directing the assessing authority to invoke the penal provisions under Section 67(1) of the KVAT Act when there is specific provision governing the matter of goods in transit under Section 47(6)?
HELD THAT:- Section 46(3)(e) mandates that when goods are imported to the State the transporter shall keep a copy of the declaration bill duly acknowledged by concerned authority and shall be produced on verification by any authority and the declaration should be in Form 8FA.
The case of Joy Alukkas [2022 (11) TMI 92 - KERALA HIGH COURT] is a case in which gold ornaments were transported from Haryana and from New Delhi through Air. When the goods were intercepted, it was found that there were defects in the delivery note and in respect of the full name and address of the consignee the invoice did not contain the full address of the consignee. The delivery notes tampered with over writings and thus the Assessing Officer had reason to believe that there was an attempt to evade tax and therefore, section 47(6) of the KVAT Act was invoked - Going through the facts of the case it can be seen that only defect is that declaration in form 8FA was not accompanied with the goods. All other documents including invoices, bill of entry and delivery note were in order and there were no defects. Hence, the decision has no application to the facts of this case.
The Tribunal has found in its order that there is clear violation of the provisions on the part of the appellant/respondents which warrants imposition of penalty. But held that penalty under Section 47(6) of the KVAT Act is not warranted and liberty was given to invoke the penal provision under Section 67(1) of the KVAT Act for the offences proved against the assessee - On going through the order of the Tribunal in detail, it is opined that the Tribunal was justified in allowing the appeal and setting aside the penalty under Section 47(6) KVAT act and giving liberty to invoke Section 67(1) KVAT finding that the appellant had clearly violated the provisions of section 46(3)(e) of the KVAT. Therefore the question of law raised in this revision is answered against the petitioner and in favour of the assessee.
Revision dismissed.
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2023 (2) TMI 368
Refund claim alongwith interest - AO did not accept the VAT returns for the quarter 01.04.2017 to 30.06.2017, which was filed on 28.09.2017, and framed a default assessment of VAT for the year 2014-15 and 2016-17 by assessment orders - non-service of notice under Section 74(8) of the DVAT Act - petitioner claims that it is now entitled to refund on the ground that the time for the OHA to pass an order has elapsed and therefore, its return claiming a refund of ₹14,12,185/- stands.
HELD THAT:- The provisions of Section 74 of the DVAT Act are applicable. Undeniably, the OHA was required to pass an order within the period as prescribed under Section 74 of the DVAT Act. However, the failure on the part of the OHA to pass an order within the stipulated period does not automatically result in the objections being treated as allowed unless two conditions are satisfied. First, that a written notice requiring the OHA to make a decision within a period of fifteen days has been served in accordance with Section 74(8) of the DVAT Act, and second, the OHA has failed to render the decision within the said period.
In the present case, it is not disputed that the petitioner has not served any notice under Section 74(8) of the DVAT Act, therefore, the provisions of Section 74(9) of the DVAT Act have not come into play - As held in Commissioner of Sales Tax v. BEHL Construction [[2009 (1) TMI 787 - DELHI HIGH COURT]], it is mandatory that a notice under Section 74(8) of the DVAT Act is issued for triggering the deeming provisions of Section 74(9) of the DVAT Act.
In the given facts, the petitioner’s prayer for refund of the amount of ₹14,12,185/- along with interest cannot be acceded to at this stage - however, it is considered apposite to direct the concerned OHA to pass an appropriate order, in compliance with the order dated 17.09.2021 passed by the Tribunal, as expeditiously as possible - it is also clarified that the petitioner is not precluded from issuing a notice as required under Section 74(8) of the DVAT Act.
Petition disposed off.
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2023 (2) TMI 367
Maintainability of petition - refund of the excess tax collected - concessional rate of tax filing of Form C declaration - HELD THAT:- The writ petitioner/purchasing dealer has locus standi to maintain the claim for refund of the excess tax collected directly to them and the writ petition is maintainable - To be entitled to concessional rate of tax filing of Form “C” declaration is mandatory. However, the time limit prescribed for filing such declarations is directory and not mandatory and in the case on hand the assessing officer having accepted the Form “C” declarations and considered the same, it is deemed that the assessing officer of IOCL was satisfied that there was sufficient cause which prevented the dealer from filing Form “C” declaration within the time stipulated under the Act and the rules framed thereunder.
Having held that the rejection of the Form “C” declarations was erroneous, unsustainable and illegal - the writ petitioner is entitled to the concession rate of tax as they have fulfilled the conditions in Section 8 of the Central Sales Tax Act, 1956 and the Form “C” declarations having been verified and found to be in order by the concerned authority of the State of West Bengal.
Thus, the writ petitioners are entitled to claim refund of tax directly from the State of West Bengal and they are not required to make the claim through the selling dealer, IOCL.
The order and directions issued by the learned Single Bench stands affirmed and the appellants/State of West Bengal is directed to effect the refund of the excess tax collected directly to the writ petitioner within 45 days from the date of receipt of the server copy of this order together with interest at the statutory rate as stipulated under the WBST Act, from 01.07.2020 that is the day after the date on which the assessment order in the case of IOCL was passed that is 30.06.2020 till the date on which refund is effected. If there is any discrepancy in the date, it is clarified that interest shall be payable from the next day after the date of the assessment order till the date of payment.
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2023 (2) TMI 290
Interest for the period prior to the three years - respondent has refunded the excess tax and also paid interest for the period of three years - HELD THAT:-The said issue was considered by a coordinate bench of this Court in IJM Corporation Berhad v. Commissioner of Trade and Taxes [[2017 (11) TMI 1298 - DELHI HIGH COURT]]. This Court had held that in terms of Section 42 of the DVAT Act, interest would be payable if the refund is not paid within a period of two months of filing of the return.
On a closer examination of the facts of this case, we are unable to accept that the petitioner can be denied interest on the amount of refund which has been unjustifiably withheld, mainly for two reasons. First, that there is no dispute that the petitioner is entitled to the refund and his return was required to be considered as an application for the same. The petitioner was not required to approach or pursue the authorities for its claim for refund of excess tax. Second, that the delay in processing claims for refund is endemic to the DVAT authorities and if the same is considered, the delay on the part of the petitioner approaching this court is not long.
Although the petitioner has not approached this Court immediately after the refund of tax became due, we are unable to accept that the same disentitles the petitioner from claiming what is rightfully due - this Court directs the respondents to process the petitioner’s claim for interest in accordance with law.
Petition disposed off.
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2023 (2) TMI 227
Validity of Departmental Eqquiry agaisnt the Revenue officer - Jurisdiction - Refund claim - Whether the departmental proceedings could have been initiated against the petitioner for his alleged act or omission relating to exercise of his powers in the matter of passing orders of assessment/reassessment/refund of taxes to the dealers of coal companies? - Doctrine of Bias - HELD THAT:- Upon perusal of the allegations levelled against the petitioner, this Court finds that the charge No.-I was the consequence of the various acts and omissions alleged in charge Nos. II to VII and each of the charge in charge no. II to VII are distinct and relate to different stages in the matter of assessment/reassessment and refund of taxes. One of the main allegations levelled against the petitioner is that upon remand by the appellate authority, the petitioner allowed the change of the nature of sale without there being any cogent material and solely on the basis of revised return. There can be no doubt that the nature of sale has a direct bearing on the rate of tax and it is alleged that such action resulted in issuance of huge refund orders by the petitioner.
Considering the nature of allegations levelled against the petitioner, this Court is of the considered view that on the face of the allegations made against the petitioner, there is prima facie material to show recklessness or misconduct in discharging of his official duty and that the petitioner did not act appropriately to safeguard the interest of revenue and had acted negligently and did not abide by the prescribed conditions for exercise of statutory powers which included acceptance of revised return without cogent material to change the nature of sale, which resulted in passing of the orders showing excess payment. This was coupled with the allegation that those refunds were further initiated by the petitioner although the refund applications for refund more than Rs.20,000/- were required to be filed before the Joint Commissioner and not before the assessing authority in terms of the Rules.
The plea of examination/cross-examination of Shri Vidya Bhushan Verma on the basis of whose report it is stated that the departmental proceedings were initiated against the petitioner - HELD THAT:- The stand of the respondents is that the petitioner has not been prejudiced by not examining Shri Vidya Bhushan Verma who had prepared a report which was based on official records. The petitioner has not been able to demonstrate before this Court as to how the petitioner has been prejudiced by non-examination of Shri Vidya Bhushan Verma. However, this Court is of the considered view that the departmental proceedings is still pending on account of interim order passed by this court way back in the year 2010 and there is no harm if Shri Vidya Bhushan Verma is examined at the enquiry proceedings. This Court finds that the petitioner filed the present writ petition on 30.01.2010 challenging the initiation of enquiry proceedings against the petitioner vide resolution No. 2829 dated 13.12.2008. The respondents have not been able to point out any order rejecting the plea of the petitioner for production of Shri Vidya Bhushan Verma for examination.
It is directed that the respondents will take all appropriate steps to examine/cross-examine Shri Vidya Bhushan Verma in the departmental enquiry and the official records which are the basis of allegations made against the petitioner be made available to the petitioner for inspection and for cross-examination of Shri Vidya Bhushan Verma. It has been stated in para 43 of the counter affidavit dated 19.04.2010 that all the relevant documents have been provided to the petitioner during the course of departmental proceedings but no rejoinder has been filed to deny or dispute the averments made in the counter affidavit.
The entire allegations against the petitioner is based on official records resulting in passing of quasi-judicial orders of assessment/reassessment/refund etc. and as long as those records are available, no prejudice will be caused to the petitioner by not examining Shri Vidya Bhushan Verma for testifying and verifying the details of the report submitted by him.
Alleged bias of the enquiry officer -Respondent no.3 against the petitioner - HELD THAT:- No rejoinder has been filed to the aforesaid counter affidavit filed by the respondents. The aforesaid statement made in the counter affidavit clearly reveal that the enquiry officer namely, Sri Niranjan Prasad Mandal, the then Joint Commissioner of Commercial Taxes (Admn.), Dhanbad Division, Dhanbad was posted at Dhanbad only for a period from 5.7.2008 to 14.12.2009 i.e., after the alleged events/incidents involving the petitioner was already over.
This Court is of the considered view that although allegation of bias has been made but the allegations are not substantiated by any material or conduct of the inquiry officer in order to create any impression of bias against the petitioner, even remotely.
The petitioner is directed to appear before the Respondent no.1 on 20.02.2023 for needful and shall fully cooperate for expeditious conclusion of the disciplinary proceedings - Interim order dated 19.03.2010 is vacated.
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2023 (2) TMI 136
Inter-state sale or local sale? - ‘C’ Forms and other details like Form 402, not produced - demand of pre-deposit - HELD THAT:- The petitioner was not in a position to pay the amount of pre-deposits and had also closed its business and shifted to Rajasthan owing to the fact that, its registration had been cancelled.
Our attention is drawn to the order of the Appellate Authority for the year 2010-11 and 2011-12 as also the order dated 29.06.2019 under Section 73 of the VAT Act, whereby the authority concerned had permitted the payment of predeposit of 15% of the tax amount. The First Appellate Authority also had adjudicated the matter and as a substantial reduction from the total demand which had been raised the concerned years. There had been no challenge to the direction of 15% of the tax amount during the pendency of the adjudication. There is no reason as to why in the case of the very assessee when for the assessment years 2010-11 and 2011-12 the authority concerned had permitted the payment of pre-deposit of 15% of the tax amount.
Without entering into merit of the matters and also the sheer reflects of time also would necessiate for us to intervene and direct the pre-deposit amount to be quantified at the rate of 15% of the tax demand raised by the respondent rather than 15% of the total amount fixed by the Assessing Officer.
The impugned order passed by the Tribunal is set aside and matter relegated to the First Appellate Authority for the deposit of 15% of the tax amount within a period of four weeks from the date of receipt of a copy of this order - petition allowed.
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2023 (2) TMI 135
Recovery of tax dues - Right of auction purchaser of the property - Auction of property by the Secured Creditor (Bank) - Seeking lifting of attachment over the property - existence of encumbrance in the nature of government dues of unpaid sales tax - Section 45 of the Gujarat Value Added Tax Act - HELD THAT:- The settled position of law is that the VAT and sales tax dues has no precedence over the dues of the bank for recovery of which the bank exercise powers under the SARFAESI Act. The bank was secured creditor. Section 26 E of the SARFAESI Act provides for priority of secured creditor, stating that notwithstanding anything contained in any other law, after the registration of security interest, the debts due to unsecured creditor shall be paid in priority of all other debts and all revenues, taxes, cesses and other rates payable to the Central Government or State Government or local authority - The charge sought to be created by the sales tax authorities in no way could discount the a priori rights of the bank to recover its dues as the bank was secured creditor.
The dues in the nature of sales tax or VAT payable by the original owner cannot claim priority over the dues of the secured creditor. The principle that the state debt or crown debt has no prior claim or the dues payable to the secured creditor is no longer res integra. In BANK OF BIHAR VERSUS STATE OF BIHAR [1971 (4) TMI 96 - SUPREME COURT], the supreme court laid down certain well known principles which were followed by the supreme court in its own judgment in DENA BANK VERSUS BHIKHABHAI PRABHUDAS PAREKH AND CO. AND OTHERS [2000 (4) TMI 36 - SUPREME COURT]. The law laid down is that the preferential right of the Crown to recover the debt over the creditors is limited to the class of unsecured creditors.
The charge in respect of the property in question created for sales tax dues is of no avail and has no efficacy in law. The property in question was sold by the bank which was a secured creditor, to enforce its secured debt under the SARFAESI Act, of which the petitioners were successful auction purchaser. They were issued sale certificate which was registered to finally become absolute owner of the property. In exercising their capacity as owners, they executed further sale deed dated 15.2.2021 which was registered with the office of Sub-Registrar at No.1169 on 16.2.2021, however the Sub-Registrar refused to return the sale registered sale deed in view of the order of the respondent No.5 Sales Tax Authority on the ground that it had created charge over the properties for the sales tax dues.
The respondent No.3 Sub Registrar was wholly unjustified in passing order dated 6.3.2021 to keep the document No.1169 dated 16.2.2021 which was sale deed executed by the petitioners, keeping the same pending and not returning the same to the petitioners - Since the petitioner had purchased in the auction sale conducted by the bank under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 the property travelled in favor of the petitioner free from any encumbrances, order of sales tax officer registering the charge over the property in relation to the sales tax and Value Added Tax payable by original owner of the property had no efficacy in law.
Petition allowed.
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2023 (2) TMI 97
Seeking declaration of entitlement to the benefit of exemption of sales tax (value added tax) for the balance period of five years from April, 2005 to July, 2008 - G.O.Ms.No.6 - HELD THAT:- Having regard to the object and spirit behind issuance of G.O.Ms.No.6 dated 18.12.1998, and the fact that petitioner was provided exemption thereunder for the assessment periods 2003-2004 and 2004-2005, denial of such benefit for the remaining period of five years as contemplated under the aforesaid government order does not appear to be justified.
The respondents are directed to treat the petitioner as an eligible unit under G.O.Ms.No.6, dated 18.12.1998, and extend the benefit of sales tax exemption for the period of five years excluding the period for which benefit has already been granted to the petitioner. This shall be carried out within a period of four months from the date of receipt of a copy of this order.
Petition allowed.
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2023 (2) TMI 96
Penalty under Section 51(7)(c) of the Punjab VAT Act, 2005 - driver of the vehicle did not furnish the information in respect of Invoices No. 526 and 527 both dated 12.7.2006 and GR Nos. 9411 and 9412 - failure to produce books of account before the detaining officer - failure to give any explanation for not submitting the information in respect of above said two invoices - HELD THAT:- In the facts of the present case, sale was processed to be made to CRPF as per supply order (Annexure A-1) and all the information were given at the computer centre and all the documents were shown but when the goods were detained, other two invoices were also shown. The supply order was also shown which was given by the Additional Deputy Inspector General of Police, CRPF, Jalandhar. Hence, it was a sale which was made to Government Department and the appellant had also produced GRs and all the invoices at the time of checking. There was no attempt made by the driver not to show invoices before the detaining officer.
Reference can now be made to judgment passed in STATE OF PUNJAB AND ANOTHER VERSUS SHREE RAM PANELS [2011 (8) TMI 1027 - PUNJAB AND HARYANA HIGH COURT], wherein a coordinate Bench of this Court had dismissed the appeal filed by the State of Punjab against the order of Tribunal as the Tribunal had accepted the appeal filed by the assessee and set aside the imposition of penalty on the ground that there was no violation of Section 51(4) of the Punjab Value Added Tax Act with a view to make an attempt to evade tax as the driver of the vehicle was in possession of goods receipts alongwith invoices and produced the same as well.
In the facts of the present case, the appellant was making sale to Government Department all over India as the supply order was given by the Additional Deputy Inspector General of Police, CRPF, Jalandhar and the driver had produced 5 documents before the computer centre at ICC but VAT-XXXVI could not generate and at the time of checking, apart from 5 documents two invoices No. 526 and 527 dated 12.7.2006 and GR Nos. 9411 and 9412 were also produced. Since the respondents, in the present case, were not disputing the fact that the sale was being made to CRPF and only on account of non-generation of VAT-XXXVI, penalty could not have been imposed - The driver is not required to give any information with respect to details of the invoices. He is to only produce documents to show that there was a supply order and GRs had been issued and he was taking the goods to their destination outside the State.
Further, it is not the case of the respondents that the two invoices No. 526 and 527 did not issue to CRPF. Hence, once the Government Department had accepted the invoices produced at I.C.C., there was no occasion not to accept Invoices No. 648, 225 and 8 dated 12.07.06. Similarly, invoices No. 526 and 527 were also issued on the same date i.e. 12.07.2006 with respect to supply order (Annexure A-1). The driver was not expected to know details of the supply order - in the present case, the driver had produced the documents at I.C.C. and subsequently at the time of checking, he showed all the invoices. There was no attempt to evade tax.
Appeal allowed.
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2023 (2) TMI 64
Jurisdiction of Revisional Authority to revise an order - Maintainability of petition - availability of an alternative remedy of appeal to the appellant under section 33 of the VAT Act - whether to remit the writ petition to the High Court for hearing it on merits or to examine the correctness or otherwise of the orders impugned before the High Court?
HELD THAT:- where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available.
Jurisdiction of Revisional Authority to revise an order - Clarification of goods - Not Accepting the decision of Tribunal - HELD THAT:- The sine qua non for exercise of power under section 34 is the satisfaction of the Revisional Authority that an order has been made by a taxing authority in any proceeding prejudicial to the interests of the State, the legality or propriety of which appears to him to be prima facie vulnerable. Nevertheless, such power cannot be exercised if the issue involved is pending before or has been settled by an appellate authority. It cannot be disputed that the Tribunal is comprehended within the meaning of ‘appellate authority’ as defined in section 2(b) of the VAT Act - These being the contours of section 34, as it then stood, it needs to be seen how far the Revisional Authority was justified in drawing power from such provision and exercising it.
Having regard to the specific entry, i.e. Entry 129, dealing with mosquito repellents, this Court overruled the contention of the appellant therein that ‘Jet Mat’ would not come within the ambit of Entry 129 since one of its constituents happens to be an insecticide. It was also held that the product manufactured by the appellant therein, viz. ‘Jet Mat’, which was commercially known as “Mosquito Repellent Mat” is a mosquito repellant notwithstanding the fact that it not only repels mosquitoes but is also capable of killing mosquitoes. For the reasons assigned in the decision, it was held that ‘Jet Mat’ is not an insecticide which would be entitled for partial exemption under Entry 98 of the Sales Tax Act - It is, therefore, clear that because of the specific entry dealing with mosquito repellents, this Court held ‘Jet Mat’ to be covered under Entry 129.
What stares at the face of the respondents is that the aforesaid decision of the Tribunal, quoted in the order of the Assessing Authority, has attained finality. Once the issue stands finally concluded, the decision binds the State, a fortiori, the Revisional Authority. The decision of the Tribunal may not be acceptable to the Revisional Authority, but that cannot furnish any ground to such authority to perceive that it is either not bound by the same or that it need not be followed. The first proviso, in such a case, gets activated and would operate as a bar to the exercise of powers by the Revisional Authority.
The Revisional Authority might have been justified in exercising suo motu power to revise the order of the Assessing Authority had the decision of the Tribunal been set aside or its operation stayed by a competent Court. So long it is not disputed that the Tribunal’s decision, having regard to the framework of classification of products/tax liability then existing, continues to remain operative and such framework too continues to remain operative when the impugned revisional orders were made, the Revisional Authority was left with no other choice but to follow the decision of the Tribunal without any reservation - Unless the discipline of adhering to decisions made by the higher authorities is maintained, there would be utter chaos in administration of tax laws apart from undue harassment to assesses.
There is nothing on record to justify either illegality or (procedural/moral) impropriety in the proceedings before the Assessing Authority or the orders passed by him, as such. The Assessing Authority was bound by the order of the Tribunal and elected to follow it having no other option - it is not the Assessing Authority’s orders but those passed by the Revisional Authority, which suffer from a patent illegality.
There are no other option but to invalidate the impugned final revisional orders dated 2nd March, 2009 for the Assessment Years 2003-04 and 2004-05 - appeal allowed.
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2023 (2) TMI 63
Restoration and validation of cancelled Statutory Form C issued to the Petitioner - validity of Statutory Form 9C - denial of benefit of the said C-forms to the petitioner on the ground that the said forms were cancelled by the Delhi VAT Authorities.
HELD THAT:- It is relevant to state that the respondent has not questioned the petitioner’s claim that it is a subsidiary of Louis Dreyfus Commodities Asia Pvt. Ltd, a reputed company dealing in agri-based commodities, and is engaged in processing of edible oil and coffee. The petitioner has offices and operations in twenty-one States.
In JAIN MANUFACTURING (INDIA) PVT. LTD. VERSUS THE COMMISSIONER VALUE ADDED TAX & ANR. [2016 (6) TMI 304 - DELHI HIGH COURT] this court had held that C-forms cannot be cancelled retrospectively. Further, this Court has disposed of several writ petitions involving the similar issue by following the decision in Jain Manufacturing (India) Pvt. Ltd.
It is not disputed that the respondents had not appealed the decision in the case of Jain Manufacturing (India) Pvt. Ltd. The said decision is binding on this Court and thus, the benefit of the C-Forms cancelled retrospectively cannot be denied to the petitioner - Insofar as the remaining 9 C-forms are concerned, it is conceded that the said forms had not been cancelled. The counter affidavit is silent as to the reasons for denying the benefit of the said C-forms to the petitioner - A plain reading of the counter affidavit indicates that it proceeds on the basis that the matter is sub judice in the appealpreferred against the decision of this court in M/S JAI GOPAL INTERNATIONAL IMPEX PVT. LTD VERSUS COMMISSIONER OF DELHI VALUE ADDED TAX & ANR. [2018 (7) TMI 1861 - DELHI HIGH COURT].
There is no reason for denying the benefit of C-forms to the petitioner as there is no allegation that the petitioner had not supplied the goods in question - Petition allowed.
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2023 (2) TMI 62
Levy of local body tax - Dealer or Commission Agent or Importer? - it is submitted that the Petitioner is not liable under the provisions of Local Body Tax Rules and as such is not required to register himself under these rules to pay any local body tax - Maharashtra Municipal Corporation (Local Body Tax) Rules, 2015, r/w. relevant provisions of the Municipal Corporation Act, 1888 - HELD THAT:- In the present case, the goods which are brought from outside by the Petitioner into the limits of Pune Municipal Corporation, as can be seen from the operations carried out by the Petitioner, are not for his own use or for earning commission or sale, but are for the purpose of being delivered at the door step of the individual buyer. In other words, what the Petitioner is doing here is import of goods for the purpose of delivery to some other person and for this purpose, the Petitioner acts like a courier or postman or delivery person. Thus, activity of the Petitioner would not be covered by the definition of the word “importer”. If the Petitioner cannot be called to be a person who “imports” goods into the city limits for use or consumption or sale and if the Petitioner is also not the person who is alleged to be selling or buying goods for commission or remuneration or otherwise in the city, the Petitioner would not be a “dealer” within the contemplation of Section 2(16A). If this is so, then the Petitioner would not be liable for any registration for the purpose of LBT under rule 3 of the LBT Rules.
In the present case, the Petitioner is not a dealer within the contemplation of the Maharashtra Municipal Corporation Act and therefore would not be a dealer as envisaged under Rule 3 of LBT Rules. As regards commission agent, or any other agent, we must say that the impugned order considers the Petitioner as a commission agent but, having regard to activity carried out by the Petitioner and service rendered by it, we have already found that the Petitioner, is a person who brings goods within the limits of the Corporation for the purpose of their delivery to the buyer who buys the goods independently from different seller by using internet platform provided by Flipkart and thus, the Petitioner acts like courier or a postman or a delivery person. Therefore, the Petitioner could not be said to be an agent, either of the seller or the buyer much less a commission agent.
All these aspects of the matter which are very critical for the purpose of assessment and levy of local body tax have not been considered by the Municipal Commissioner, Pune. The impugned order is illegal and bad-in-law. Such an order cannot be sustained in the eyes of law and deserves to be quashed and set aside - Petition allowed.
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2023 (2) TMI 61
Recovery of dues - Priority of charge - creation of charge on the property - Seeking extraordinary jurisdiction to delete the charge created under Gujarat Value Added Tax Act for the property owned by the petitioner as per the private treaty under the provisions of the SARFAESI Act - SARFAESI Act have an overriding effect over the provisions of the VAT Act and the secured creditors shall have priority over the dues of Central Excise Department or not.
Whether the charge created under the Gujarat Value Added Tax over the property in question would have an overriding power over the charge created under the provisions of the SARFAESI Act and the Security Interest Rules, 2002?
HELD THAT:- The answer shall need to be in negation. It is quite clear from the provisions contained in SARFAESI Act that this Act would have an overriding effect over the provisions of the Gujarat Value Added Tax Act.
The law on the subject requires consideration. Firstly, this Court in the case of KALUPUR COMMERCIAL CO-OPERATIVE BANK LTD. VERSUS STATE OF GUJARAT [2019 (9) TMI 1018 - GUJARAT HIGH COURT] held that the plain reading of section 48 of the VAT Act indicates that it starts with nonobstante clause and this provision creates first charge on the property.
The issue as regards the claim of the property of the secured creditors vis-a-vis the first charge of the property under the State legislation was considered by the Apex Court in the case of CENTRAL BANK OF INDIA VERSUS STATE OF KERALA AND OTHERS [2009 (2) TMI 451 - SUPREME COURT], where the apex Court had held that if the State acts to create the first charge on the property, then the secured creditors cannot have the claim against the statutory provision. While so holding, it took into consideration section 100 of the Transfer of Property Act, 1882. The Court held that when two or more laws or provisions operate in the same field and each contains nonobstante clause stating that its provision will override those of any other provisions of the law stimulating an intricate problem of the interpretation arises while relying on such problems of interpretation, no settled principles can be applied, except to refer to the object and purpose of each of the provisions containing non obstante clause. Two provisions in the same Act, each containing a non obstante clause requires harmonious interpretation of the two seemingly conflicting provisions of the same Act. The conflict here is with the State Act and the Central Act.
On considering the true purport and effect of section 26A of the SARFAESI Act, which came to be enacted later in point of time and also the effect of section 31B of the RDB Act, the Court considered in detail necessity for introduction of these two provisions in two enactments.
The petition stands allowed deleting and removing noting of all the charges and encumbrance created under the Act on land located at Revenue Survey No.277, Village: Kamod, Taluka: Vatva, District: Ahmedabad with consequential relief.
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2023 (2) TMI 4
Exemption from tax - Taxability of Selling of food items in the school / hostel - whether the petitioner’s educational institution imparts education on non-profit motive but not on commercial basis and if so, it is exempted from tax under AP VAT Act, 2005? - HELD THAT:- The activity of a person must be a trade, commerce or manufacture so as to bring such activity as “business”. If such business is carried out for buying, selling, supplying or distribution of the goods, such person who is involved in that business shall be regarded as “dealer” and under Section 4 of A.P. VAT Act, such dealer shall be excisable to tax. In the instant case, as rightly submitted by the counsel for petitioner, the fundamental or principal activity of the petitioner’s educational institution is not that of buying, selling, supplying or distribution of the goods rather its function is to impart education that too on a non-profit motive. The petitioner in its hostel supplies food to the students but the said activity is not done in the course of business of running restaurant, eating house or a hotel. As rightly submitted by the learned counsel for the petitioner, section 2(10) (d) of the VAT Act specifically refers to only a restaurant or eating house or a hotel but the word ‘hostel’ is not specifically included therein. Therefore, the inclusion of the petitioner’s institution in the category of dealer for the purpose of AP VAT Act, 2005 and assessing the same to tax U/s 21 of AP VAT Act is not correct.
The petitioner’s case was that the fee charged from the visitors of the hostel is not the actual price of the food consumed by them and the principle of charging the fee is the same as in the case of other hostels where students reside and that a fixed fee is charged for tea, breakfast, lunch and dinner and the same has no relation to the actual consumption and the charges paid by the residents have really a very remote relation to the actual value of the food stuffs consumed by them. Thus, according to petitioner, the transaction of supplying food stuffs to the residents of the hostel cannot be termed as ‘sale‘ nor can the petitioner be said to be ‘carrying on business of buying or selling goods’ within the meaning of UP Sales Tax Act. The respondent however contended that the petitioner charges price of foodstuffs supplied to the visitors separately in the bills and that the customers of the petitioner include all and sundry.
In the instant case also the principal function of petitioner is to impart education with a non-commercial motive and running of the hostel is incidental to the main activity and as such, though subsidized prices are charged from the students for supply of the food items and beverages, the transaction cannot be treated as ‘sale of goods’ to bring the activity within the mischief of AP VAT Act - In the instant case the 2nd respondent has passed the impugned assessment order though the petitioner under law does not come under the purview of “dealer” as per the provisions of AP VAT Act, 2005. Therefore, the impugned order can be said to be passed wholly without jurisdiction and hence the writ petition is maintainable.
Petition allowed.
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2023 (2) TMI 3
Seeking grant of refund alongwith interest - composite scheme - time limit of assessment - re-assessment expired long time back - HELD THAT:- After filing of the annual return, the time limit for assessment and re-assessment under the VAT Act had expired and no assessment or re-assessment is pending at this stage, we allow this writ petition with the direction to the respondents to grant the refund of Rs.2,78,129/- due as per the self-assessment return under the VAT Act for the year 2007-2008 along with statutory interest payable on such refund within a period of six weeks from the date of receipt of the writ of this order.
Petition disposed off.
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2023 (2) TMI 2
Direction to grant outstanding refund for the year 2008-2009 along with proportionate interest - time limit for re-assessment under the VAT Act expired or not - HELD THAT:- After filing of the annual return, the time limit for assessment and re-assessment under the VAT Act had expired and no assessment or re-assessment is pending at this stage, this writ petition is allowed with the direction to the respondents to grant the refund of Rs.13,82,437/- due as per the self-assessment return under the VAT Act for the year 2008-2009 along with statutory interest payable on such refund within a period of six weeks from the date of receipt of the writ of this order.
Petition disposed off.
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